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Non-Immigrant: H-1C Visa - Registered Nurse

Summary

This interim rule amends the Immigration and Naturalization Service's (Service) regulations in order to implement the Nursing Relief for Disadvantaged Areas Act of 1999 (NRDAA) by providing instruction on the filing and adjudication of petitions for H-1C classification. This rule will facilitate the hiring of nonimmigrant alien nurses to reduce the shortage of nurses in health professional shortage areas in the United States. This interim rule is effective June 11, 2001.

What Is the NRDAA?

On November 12, 1999, President Clinton signed into law the Nursing Relief for Disadvantaged Areas Act of 1999 (NRDAA), Public Law 106-95. The NRDAA created a new H-1C nonimmigrant category for registered nurses who will work in facilities that serve health professional shortage areas.

Is the H-1C Program Similar to the H-1A Program That Expired on September 1, 1995?

The H-1A program was created by the Immigration Nursing Relief Act of 1989 (INRA). While the NRDAA adopts, almost verbatim, many of the provisions of the INRA, there are some differences between the two programs. The NRDAA imposes more restrictions on the types of facilities that may petition for a nonimmigrant registered nurse and requires that these facilities make a greater number of attestations to the Department of Labor (DOL) than did the INRA. Whereas the INRA allowed for an unlimited number of H-1A nonimmigrant visas to be issued, the NRDAA places a state-by-state numerical cap on the number of H-1C nonimmigrant visas that may be issued. Also, unlike the INRA, the NRDAA does not recognize nursing education received in Canada. For the most part, however, the INRA and the NRDAA are identical and, therefore, much of the regulatory language from the H-1A program has been used for the H-1C program.

What Is an H-1C Nonimmigrant?

An H-1C nonimmigrant is an alien who is coming temporarily to the United States to perform services as a registered nurse, who meets the requirements of section 212(m)(1) of the Immigration and Nationality Act (Act), and will perform services at a facility (as defined at section 212(m)(6) of the Act) for which the Secretary of Labor has determined and certified to the Attorney General that an unexpired attestation is on file and in effect under section 212(m)(2) of the Act.

What Are the Eligibility Requirements for an H-1C Nurse?

The NRDAA imposed three requirements on an alien seeking H-1C nonimmigrant status. First, the alien must have obtained a full and unrestricted license to practice professional nursing in the country where he or she obtained nursing education, or the alien must have received nursing education in the United States. Second, the alien must have passed an appropriate examination (recognized in regulations promulgated in consultation with the Secretary of Health and Human Services) or have a full and unrestricted license under state law to practice professional nursing in the state of intended employment. Finally, the alien must be fully qualified and eligible under the laws (including such temporary or interim licensing requirements which authorize the nurse to be employed) governing the place of intended employment to engage in the practice of professional nursing as a registered nurse immediately upon admission to the United States and be authorized under such laws to be employed by the facility.

The NRDAA does not specifically designate any particular examination as an "appropriate examination" for the purpose of meeting the eligibility requirements for the H-1C classification. At present, the only "appropriate examination" available for a prospective H-1C alien is the examination offered by the Commission on Graduate of Foreign Nursing Schools (CGFNS). However, the Service may eventually recognize additional examinations for this purpose.

Questions concerning the test offered by CGFNS should be directed to CGFNS. CGFNS can be reached through its internet website, www.cgfns.org.

What Certification Requirements Are Imposed on an H-1C Alien?

On September 30, 1996, President Clinton signed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L. 104-208. Section 343 of IIRIRA created a new ground of inadmissibility at section 212(a)(5)(C) of the Immigration and Nationality Act (the Act) for aliens coming to the United States to perform labor in certain health care occupations. As initially written by Congress, section 343 of IIRIRA provides that any alien coming to the United States for the purpose of performing labor as a health care worker, other than as a physician, is inadmissible unless the alien presents to the consular officer, or, in the case of adjustment of status, the Attorney General, a certificate from the CGFNS, or an equivalent independent credentialing organization approved by the Attorney General in consultation with the Secretary of Health and Human Services (HHS).

Pursuant to the statute, the certificate must verify that: (1) The alien's education, training, license, and experience are comparable with that required for an American health care worker of the same type; (2) they are authentic; (3) the alien's license is unencumbered; (4) the alien has the level of competence in oral and written English considered by the Secretary of HHS, in consultation with the Secretary of Education, to be appropriate for health care work of the kind in which the alien will be engaged, as shown by an appropriate score on one or more nationally recognized, commercially available, standardized assessments of the applicant's ability to speak and write English; and, finally, (5) if a majority of states licensing the profession in which the alien intends to work recognize a test predicting the success on the profession's licensing or certification examination, the alien has passed such an examination.

The NRDAA created an alternative certification requirement at section 212(r) of the Act for certain nurses, which may include some H-1C nonimmigrant aliens. Section 212(r) of the Act provides that section 212(a)(5)(C) of the Act shall not apply to a nurse who presents to the consular office (or in the case of adjustment of status, the Attorney General) a certified statement from the Commission on Graduates of Foreign Nursing Schools (CGFNS) (or an equivalent independent credentialing organization approved by the Attorney General and the Secretary of Health and Human Services) which certifies that:

  1. The alien has a valid and unrestricted license as a nurse in the state where the alien intends to be employed and such state verifies that the foreign licenses of alien nurses are authentic and unencumbered;
  2. The alien has passed the National Council Licensure Examination (NCLEX);
  3. The alien is a graduate of an English-language nursing program in a country designated by the CGNFS which was in operation on or before the date of enactment of the NRDAA or has been approved by unanimous agreements by the CGFNS and any other approved credentialing organizations.

The Service has granted authorization to three organizations to issue certificates to foreign health care workers pursuant to section 343 of IIRIRA through the publication of two interim rules. However, the two interim rules limited these organizations to issuing certificates to aliens in only three occupations who are coming to the United States as immigrants or who are applying for adjustment of status. Due to a number of problems implementing a final regulation fully implementing section 343, the Service has exercised its authority under section 212(d)(3) and waived the requirements of section 343 of IIRIRA as it relates to nonimmigrant aliens. The Service will continue to waive section 343 for nonimmigrant aliens until such time as the Service promulgates a final rule implementing section 343 of IIRIRA in full.

In order to avoid confusion for both health care workers and medical facilities, and to ensure equitable administration of these two statutory provisions, the Service will include the proposed regulations implementing section 212(r) in the soon to be published proposed rule implementing section 343 of IIRIRA. As a result, the Service will exercise the authority granted to it in section 212(d)(3) of the Act and waive section 212(r) for nonimmigrant aliens until publication of a final rule implementing both section 343 of IIRIRA and section 212(r) of the Act.

Who Can File a Petition for an H-1C Nonimmigrant?

An H-1C petition may be filed by a United States employer hospital (facility) which has filed an attestation with the DOL. The INS will rely on the determination made by DOL when it (DOL) reviews the attestation. The facility must have attested that:

  1. As of March 31, 1997, it was located in a health professional shortage area (as defined in section 332 of the Public Health Service Act (42 U.S.C. 254e));
  2. Based on its settled cost report for the period beginning in FY 1994, it had:
    1. At least 190 licensed acute care beds;
    2. At least 35 percent of its inpatients days were for patients entitled to Medicare; and
    3. At least 28 percent of its inpatient days were for patients who were entitled to Medicaid.

Are There Additional Attestation Requirements Provided for in the NRDAA?

Yes. The facility must also attest to the DOL that:

  1. The employment of the H-1C alien will not adversely affect the wages and working conditions of other nurses similarly employed;
  2. The H-1C alien will be paid the wage rate for registered nurses similarly employed by the facility;
  3. There is not a strike or lockout in the course of a labor dispute;
  4. It did not lay off and will not lay off a registered nurse already employed by it within the period beginning 90 days before and ending 90 days after the date of filing of any H-1C petition;
  5. The employment of the H-1C alien is not intended to influence an election for a bargaining representative for registered nurses of the facility;
  6. At the time of filing of the petition, notice of filing has been provided by the facility to the bargaining representative of the registered nurses at the facility or, where there is no such bargaining representative, notice of the filing has been provided to the registered nurses employed at the facility through posting in conspicuous locations;
  7. It will never employ a number of H-1C aliens that exceeds 33 percent of the total number of registered nurses employed by it;
  8. The H-1C alien will not be authorized to perform nursing services at any worksite other than the worksite controlled by it, and
  9. It will not transfer the alien from one worksite to another.

The facility must also attest that it has taken steps to recruit and retain registered nurses who are United States citizens or immigrants. These steps include, but are not limited to:

  1. Operating a training program for registered nurses at the facility or financing (or providing participation in) a training program for registered nurses elsewhere;
  2. Providing career development programs and other methods of facilitating health care workers to become registered nurses;
  3. Paying registered nurses wages at a rate higher than currently being paid to registered nurses similarly employed in the geographic area; or
  4. Providing reasonable opportunities for meaningful salary advancement by registered nurses.

These steps do not need to have been taken by the facility prior to the enactment of the NRDAA.

A copy of the attestation shall be provided, within 30 days of the date of filing, to registered nurses employed at the facility on the date of its filing. The attestation shall apply to all H-1C petitions filed during the 1-year period beginning on the date of its filing with the Secretary of Labor if the facility states in each petition that it continues to comply with the conditions in the attestation. These attestation requirements are explained further in regulations issued by the Secretary of Labor at 20 CFR Part 655, subparts L and M, 65 FR 51138 (Aug. 22, 2000).

Does an Attestation Ever Expire?

Yes. An attestation will expire either at the end of the 1-year period beginning on the date of its filing with the Secretary of Labor or at the end of the period of admission of the last H-1C alien with respect to whose admission it applies, whichever is later. With regard to an individual alien, the attestation remains valid as long as the alien is employed by the facility that made the attestation.

What Are the Penalties That the Attorney General May Impose on Facilities?

The NRDAA establishes that, if the Secretary of Labor finds that a facility (for which an attestation is made) has failed to meet a condition attested to, or that there was a misrepresentation of material fact in the attestation, the Secretary may impose such administrative remedies (including civil monetary penalties in an amount not to exceed $1,000 per nurse per violation, with the total penalty not to exceed $10,000 per violation) as the Secretary of Labor deems appropriate. The Secretary of Labor shall also notify the Attorney General of such finding and provide a recommendation regarding the length of the debarment period. The Service will give considerable weight to the Secretary's determination. Upon receipt of such notice, the Service will make a final determination as to the length of the period of debarment. The Service shall not approve H-1C petitions filed by that facility for aliens to be employed by the facility for a period of at least one year.

Where Should H-1C Petitions Be Filed?

All H-1C petitions must be filed on Form I-129 Petition for a Nonimmigrant Worker at the Vermont Service Center (VSC). What Supporting Documents Should Be Submitted With the Petition? The petitioning facility must submit the following documents at the time the H-1C petition is filed:

  1. A current copy of the DOL's notice of acceptance of the filing of its attestation on Form ETA 9081;
  2. A statement describing any limitations which the laws of the state or jurisdiction of intended employment place on the alien's services; and
  3. Evidence that the alien(s) named on the petition meets the definition of a registered nurse as defined at 8 CFR 214.2(h)(3)(i)(A), and satisfies the requirements for an H-1C nonimmigrant in section 212(m)(1) of the Act.

Can an H-1C Alien Change Employers?

Yes. An alien admitted to the United States as an H-1C nonimmigrant alien can change H-1C employers provided that the alien has not reached the limit on his or her maximum period of stay in the United States. The maximum period of stay for an H-1C nonimmigrant is 3 years. An H-1C petition filed on behalf of an alien in the United States in H-1C status may be approved for a period of time not to exceed the third anniversary of the alien's initial admission into the United States. In addition, H-1C petitions filed by a subsequent facility will be counted against the numerical limitation for the state of the alien's intended employment if the subsequent employment is in a different state.

An H-1C nonimmigrant alien may not change employers until such time as the Service approves a new H-1C petition filed in the alien's behalf by the new employer.

Can an H-1C Alien Complete a 3-Year Period of Stay, Depart the United States, and Reapply for Admission as an H-1C at a Later Date?

The statute provides that the period of admission to the United States for H-1C nonimmigrant aliens is 3 years. The Service interprets this 3-year period of time to represent the maximum period of admission for an H-1C alien. The alien's maximum period of admission begins on the date of the alien's initial admission to the United States and ends on the third anniversary of that date. Temporary absences outside of the United States for either business or personal reasons count towards the alien's maximum period of admission. Once an H-1C alien has reached the maximum period of admission in the United States, he or she is ineligible to receive an extension of temporary stay.

Can an H-1C Alien Obtain an Extension of Temporary Stay?

Yes. While an H-1C alien should be admitted to the United States for a maximum period of 3-years, there will be situations where an H-1C alien may not be able to be admitted for the 3-year period of time. For example, the alien's passport may not be valid for the required length of time (See section 212(a)(7)(B)(I) of the Act), or the alien may not be able to depart from his or her home country and apply for admission to the United States on the date that the H-1C petition becomes valid.

In no situation may the alien's stay be extended beyond the third anniversary of the alien's initial admission to the United States. In general, all H-1C aliens should be admitted for a period of three years, if otherwise eligible under statute and regulation. In the case of an alien admitted to the United States for a period of time less than 3 years, the facility may file an I-129 petition to extend the alien's stay. While the statute limits the period of employment for an H-1C alien to a maximum of 3 years, an alien may work for a petitioning employer for a period less than 3 years, depending upon the needs of the employer and the alien.

Can an H-1C Alien Depart the United States After 3 Years and Reapply for Admission as an H-1C Alien at a Later Date?

No. The statutory language of the NRDAA clearly limits the stay of an H-1C alien to a period of three years. To allow an alien to circumvent this 3-year limitation merely by leaving the United States and immediately returning defeats the purpose of the 3-year limitation on the alien's period of admission.

How Many H-1C Nonimmigrant Visas May Be Issued in a Fiscal Year?

The total number of H-1C nonimmigrant visas issued in each fiscal year shall not exceed 500. This is the national cap that cannot be exceeded in a fiscal year. In addition to the national cap of 500, the NRDAA also imposes caps on individual states on the basis of the state's population. The number of visas issued shall not exceed 25 for states with populations of less than 9 million, based upon the 1990 decennial census of population, and shall not exceed 50 for states with populations of 9 million or more. Based on the 1990 decennial census of population, the states with populations of 9 million or more are California, Florida, Illinois, Michigan, New York, Ohio, Pennsylvania, and Texas.

If the total number of visas available during the first three quarters of a fiscal year exceeds the number of qualified H-1C aliens, the excess visas shall be allocated to states, regardless of the states' numerical cap, during the last quarter of the fiscal year. Once the 500 national cap has been reached, the Service will reject any new petitions subsequently filed requesting a work start date prior to the first day of the next fiscal year.

How Will the Allocation of Unused H-1C Visas Be Handled?

H-1C petitions will be adjudicated in order of receipt. If a state reaches its annual cap during the first three quarters of a fiscal year, pending H-1C petitions for employment in that state will be put on hold until the fourth quarter of the fiscal year. If the national 500 cap has not been reached by the start of that quarter, then those petitions that were put on hold will be adjudicated at that time.

During the final quarter of the fiscal year, all unused H-1C nonimmigrant visas that have accrued during the previous three fiscal year quarters will be distributed to the next approvable petition, in order of receipt, regardless of whether the H-1C alien will be employed in a state that has already reached its numerical cap.

If a petition is put on hold because the H-1C alien will be employed in a state that has already reached its annual cap prior to the fourth quarter of a fiscal year, and the Service then approves 500 petitions nationwide prior to the fourth fiscal year quarter, or prior to adjudication of the held petition during that fiscal year, that petition will continue to be held pending the allocation of new visas in the next fiscal year.

The Service will publish quarterly reports concerning the number of approved H-1C petitions, by state, on the Service's website at www.ins.usdoj.gov. Again, once the 500 national cap has been reached, the Service will reject any new petitions subsequently filed requesting a work start date prior to the first day of the next fiscal year.

The first petition filed by a facility for an H-1C counts towards the numerical limitation for the state of the alien's intended employment, regardless of whether the alien was, or currently is, in H-1C status.

Are H-1C Nonimmigrant Aliens Required To Meet Any Licensure Requirements?

The purpose of the NRDAA is to alleviate nursing shortages in health professional shortage areas in the United States. As such, any alien admitted to the United States as an H-1C nonimmigrant must meet all licensing requirements for the state of intended employment and must continue to perform the duties of a registered nurse as an H-1C. Facilities and nurses are expected to comply with the licensing standards established by the state licensing board. Facilities are also required, pursuant to Sec. 214.2(h)(11)(i)(A), to notify the Service if there are any changes in the terms or conditions of employment of the H-1C alien. The Service must be notified when an H-1C nurse is no longer licensed as a registered nurse in the state of employment.

How Will the Service Process Petitions That Are Revoked?

If an H-1C petition is revoked because the alien never assumed his or her employment with the petitioning facility, that number will be returned to the pool of unused numbers and will then be made available to the state in which the petitioning facility is located in the final quarter of the fiscal year in which the petition was revoked. H-1C petitions that are revoked by the Service where the alien worked for the petitioning facility will not be returned to the pool of unused numbers.

Can More Than One Alien Be Included on an H-1C Petition?

Yes. The NRDAA allows for a petitioning facility to include more than one alien nurse on a single petition. If the number of alien nurses included in a petition exceeds the number available for the remainder of a fiscal year, the Service shall approve the petition for the beneficiaries to the allowable amount in the order that they are listed on the petition. The remaining beneficiaries will be considered for approval in the subsequent fiscal year.

Will the H-1C Classification Expire?

Yes. The H-1C classification will expire 4 years after the date that the regulations are first promulgated. As such, all petitions for H-1C alien nurses must be filed by June 13, 2005. In addition, an H-1C nurse may not be admitted to the United States beyond June 13, 2005.

Is a Facility Responsible for Paying the Alien's Return Transportation Home If the Alien Is Dismissed by the Facility Prior to the End of the Validity Period of the Petition?

No. Unlike the H-1B and H-2B nonimmigrant classifications, the NRDDA does not require a facility to pay the H-1C alien's return trip transportation home.